STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1340

)

DENNIS E. RODRIGUEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

This hearing was initially commenced pursuant to notice on November 17, 1982, in Tampa, Florida, before Stephen F. Dean, the assigned Hearing Officer of the Division of Administrative Hearings. At said hearing, the Respondent, Dennis E. Rodriguez, did not appear and was not represented. The Petitioner, Florida Construction Industry Licensing Board, presented at that hearing several documents, to include the deposition of Edward Steve Macek, in support of the allegations contained in its Administrative Complaint filed against the Respondent. These exhibits, P-1 through P-7, were received into evidence, and the Petitioner rested. On November 29, 1982, the Respondent filed a Petition for Rehearing by and through his attorney, Frank V. Vaccaro. This petition followed up a telephonic request received immediately following the originally scheduled hearing date. The thrust of the Petition for Rehearing was that the Respondent's original attorney had withdrawn immediately preceding the formal hearing, that Mr. Vaccaro had undertaken to represent the Respondent immediately before the hearing, and, although he had utilized his best efforts to attend the hearing, he was unable to find the location of the hearing and be present. By Order dated December 2, 1982, the Hearing Officer granted the Petition for Rehearing, reopening the case for the presentation of the Respondent's evidence. The rehearing was held pursuant to notice on February 11, 1983.

The Petitioner had previously filed proposed findings of fact, and the Respondent filed proposed findings of fact on February 21, 1983. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

APPEARANCES

For Petitioner: Xavier J. Fernandez, Esquire

2021 Hendry Street Post Office Box 1222

Fort Myers, Florida 33902

For Respondent: Frank V. Vaccaro, Esquire

316 Hyde Park Avenue Tampa, Florida 33606

ISSUES

The Administrative Complaint in this cause charges the Respondent with having been the qualifier for Re-Mod-Co Builders, Inc., and that Re-Mod-Co contracted with Mr. and Mrs. Edward Macek to repair the roof of the Macek home in Fort Myers, Florida. The Administrative Complaint charges that no permit was obtained for the Macek roofing job, contrary to Section 107.2, Standard Building Code, as adopted by Lee County, Florida, and that the Respondent was not certified or registered as a roofing contractor, contrary to the provisions of Ordinance 80-31, Section (1)(a) and 8-8(3)(a) of Code of Laws and Ordinances in Lee County. The Administrative Complaint alleges that the foregoing violations constitute a violation of Section 489.129(1)(d), Florida Statutes, because the Respondent willfully or deliberately disregarded and violated the laws of the state or of any municipality or county thereof.

FINDINGS OF FACT

1. Dennis E. Rodriguez was issued a residential contractor's license number CR CO12393 in February, 1978. Rodriguez qualified Re-Mod-Co Builders, Inc., in November of 1950, and license number CR CAI2393 was issued to Dennis E. Rodriguez, Re-Mod-Co Builders, Inc., 4023 W. Water Avenue, Tampa, Florida 33612. In March, 1951, a change of status was submitted by Respondent, requesting that license number CR CA12393 issued to Rodriguez and Re-Mod-Co be changed to reflect qualification of Bay to Bay Designs. At the time of the hearing, the Respondent held license number CR CO12393.

   
   

2. On February 10, 1951, Re-Mod-Co Builders, Inc., contracted with Mr. and Mrs. Edward Macek to repair the roof of their home at 1553 Braeburn Road, Fort Myers, Florida 33907, and completed the contract work on February 16, 1981.

   The records of the Lee County Building Department reflect that no roofing permits were issued between February 6 through February 16, 1981, to Re-Mod-Co Builders, Inc., for owner Edward Macek.

   
   

3. The ordinances of Lee County require that a permit be obtained prior to repairing a roof within Lee County. The ordinances of Lee County also require the certification or registration of roofing contractors and limit to roofing contractors the repair to roofs within Lee County. See Section 107.2, Standard Building Code, as adopted by Lee County Ordinance 81-5 and Section (1)(a) and Section 8-8(3)(a), Ordinance 50-31, Code of Laws and Ordinances in Lee County.

   
   

4. The records of the Department of Professional Regulation do not reflect that Dennis E. Rodriguez is now or ever has been a registered or certified roofing contractor.

   
   

5. At the time that Re-Mod-Co Builders, Inc., repaired the Maceks' roof, Dennis E. Rodriguez was not a certified or registered roofing contractor, and Re-Mod-Co Builders, Inc., for which Rodriguez was qualifier, did not obtain a building permit for the repairs to the Maceks' roof.

   
   

6. Respondent Rodriguez had no knowledge of the operation of Re-Mod-Co Builders, Inc., in Fort Myers or the fact that said company entered into a contract to repair the roof of Edward Macek. Said work was done under the direction of John Franta (phonetic). The Respondent had no knowledge of Re-Mod- Co Builders, Inc., operating outside of Hillsborough County until the secretary for the corporation told him. When the Respondent became aware that Re-Mod-Co was operating under his license in Fort Myers, the Respondent immediately

   advised the Board to change his qualification from Re-Mod-Co to Bay to Bay Designs.

   
   

7. The Respondent received $400 per week to schedule jobs for Re-Mod-Co, order materials, and check the performance of subcontractors for Re-Mod-Co within Hillsborough County.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Florida Industry Construction Licensing Board has authority to discipline its licensees pursuant to the provisions of Chapter 489, Florida Statutes. This Recommended Order is entered pursuant to the authority of Section 120.57(1), Florida Statutes.

   
   

9. The Respondent is charged with violation of Section 489.129(1)(d), Florida Statutes, which prohibits a contractor from willfully or deliberately disregarding or violating local building codes. The evidence shows that the Respondent was qualifier for Re-Mod-Co Builders, Inc. The record further shows that Re-Mod-Co entered into a contract to repair the roof of Edward Macek in Fort Myers on February 10, 1981. At that time, the Respondent was the qualifier for Re-Mod-Co but was not qualified as a roofing contractor. No building permit was issued in Lee County for the repair of the roof of the Macek home located in Lee County. The ordinances of Lee County require that a building permit be obtained for repairs to a roof, and, further, the ordinances of Lee County require that a person making repairs to a roof be a roofing contractor.

   Clearly, Re-Mod-Co Builders, Inc., did not pull the required permit, and the corporation's qualifier, Respondent Dennis Rodriguez, was not a roofing contractor.

   
   

10. There was no evidence presented that the Respondent had any knowledge of the fact that Re-Mod-Co Builders, Inc., was performing any type of contracting outside of Hillsborough County. The Respondent learned that Re-Mod- Co was contracting on his license from the secretary in the office and, after confronting the principal manager of the corporation, resigned as qualifier. No evidence was presented of any professional misconduct by Re-Mod-Co or the Respondent in Hillsborough County.

    
    

11. Section 459.129(1)(d), Florida Statutes, requires willful and deliberate misconduct. There is no evidence that the Respondent had knowledge of Re-Mod-Co's activities in Fort Myers. There is no evidence that the Respondent was negligent in overseeing his duties and responsibilities with Re- Mod-Co. Therefore, given the instant circumstances, the Respondent's actions were not willful and deliberate. The allegations that the Respondent violated Section 489.129(1)(d), supra, are not proven.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against Dennis Rodriguez be dismissed because the allegations are not proven.

DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1983.

COPIES FURNISHED:

Xavier J Fernandez, Esquire 2021 Hendry Street

Post Office Box 1222

Fort Myers, Florida 33902

Frank V. Vaccaro, Esquire

316 Hyde Park Avenue Tampa, Florida 33606

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

1. K. Linnan, Executive Director Construction Industry Licensing

   Board

   Post Office Box 2 Jacksonville, Florida 32201

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   
   

   vs. CASE NO. 16942

   DOAH CASE NO. 82-1340

   DENNIS E. RODRIGUEZ,

   
   

   Respondent.

   /

   
   

   ORDER

   
   

   Respondent, Dennis E. Rodriguez, holds Florida license Nos. GR G012393 and GR CAI2393 as a certified residential contractor. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the licenses.

   
   

   Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to 120.57(1),F.S.; it is attached to and made a part of this Order.

   
   

   The Construction Industry Licensing Board met on July 7, 1983, in Orlando, Florida, to take final agency action. The Petitioner was represented by Edward Hill, Esquire The Respondent was represented by Frank Vaccaro, Esquire The Board has reviewed the entire record in the case.

   
   

   FINDINGS OF FACT

   
   

   1. The Board adopts the Findings of Fact of the Recommended Order.

      
      

      CONCLUSIONS OF LAW

      
      

   2. The Board adopts these Conclusions of the Hearing Officer:

The Respondent is charged with violation of Section 489.129(1), Florida Statutes, which prohibits a contractor

from willfully or deliberately disregarding or violating local building codes. The evidence shows that the Respondent was qualifier for Re-Mod-Co Builders, Inc.

The record further shows that Re-Mod-Co entered into a contract to repair the roof

of Edward Macek in Fort Myers on February 10, 1981. At that time, the Respondent was the qualifier for Re-Mod-Co but was not qualified as a roofing contractor. No building permit was issued in Lee County for the repair of the roof of the Macek home located in Lee County. The Ordinances of Lee County require that a building permit be obtained for repairs to a roof, and, further, the ordinances of Lee County require that a person making repairs to a roof be a roofing contractor. Clearly, Re-Mod-Co Builders, Inc., did not pull the required permit, and the corporation's qualified, Respondent Dennis Rodriguez, was not a roofing contractor.

The Board does not adopt the remaining conclusions of the hearing officer, but instead states:

The hearing officer erred in concluding that lack of personal knowledge of the corporation's activities absolves the Respondent of responsibility. The Board has in the past concluded, and again concludes, that a qualifying agent is responsible for the contracting activities of the company he has qualified.

The Respondent has violated Section 439.129(1)(d), F.S. The Respondent is hereby REPRIMANDED.

DONE AND ORDERED in Jacksonville, Florida, this 18th day of July, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

HENRY BACHARA, Chairman

Docket for Case No: 82-001340

Orders for Case No: 82-001340